Three Lawsuits: BESE, White Out on a Limb and Wielding a Saw

July 30, 2014

Late in the evening on July 29, 2014, I completely finished writing my book on the history, development, and promotion of the Common Core State Standards (CCSS). The manuscript is with the publisher. I promise that the book will make for quite the illuminating read.

At this point, publication looks like it will be in April 2015.

Proponents of CCSS like to call it “state led.”

What if the state is divided against itself over CCSS? What then?

As the 2014-15 school year rapidly approaches, we are discovering as much in Louisiana.

Why, on the very day that I finished my CCSS book, July 29, 2014, the Louisiana State Board of Elementary and Secondary Education (BESE) held a special meeting to decide how to approach suing Louisiana Governor Bobby Jindal (let’s just get that intention out in the open and call the overall point of the meeting what it was). In short, Jindal does not want BESE to utilize any tests or even individual items created by or in cooperation with the Partnership for Assessment of Readiness for College and Careers (PARCC). BESE President Chas Roemer and State Superintendent John White want to continue with PARCC and believe that this is their right in the official capacities that they hold. (For background, read here, and here, and here, and here.)

A major problem with insisting that Louisiana education be tied to either CCSS or PARCC is that state involvement in both ventures requires states to forego state sovereignty over state educational affairs. For example, the CCSS memorandum of understanding (MOU) that Jindal and former State Superintendent Paul Pastorek signed in May 2009 (and that Jindal canceled on June 18, 2014) stipulates that CCSS revision will be determined in consortium form. Thus, states adopting CCSS agree to forego their individual rights to revise CCSS. CCSS is a group project owned by the National Governors Association (NGA) and the Council of Chief State School Officers (CCSSO). By design, individual states must forfeit sovereignty to the NGA- and CCSSO-led “group.”

As for PARCC involvement and the forfeiting of state sovereignty: On the day of BESE’s other July 2014 special meeting, July 1, 2014, the PARCC assessment contract awarded to Pearson education was held up in a New Mexico court pending a suit brought against PARCC by the American Institutes for Research (AIR). By extension, all PARCC states except New Mexico had “their” 2014-15 English and math assessments tied up in litigation in another state. Yet this is what Roemer and White argue that they have the right to do in the name of “leading” Louisiana education.

So, in what appears to be a foolish move, BESE voted to join a lawsuit involving charter school interests that must gain approval from BESE for the right to garner state tax dollars. I realize that it is common knowledge that Roemer’s sister is the director of the Louisiana Association of Public Charter Schools (details in this post), and that such is somehow accorded “no conflict.” However, a judge might not be so kind regarding BESE’s becoming a plaintiff in a suit against the state that it is part of and in conjunction with organizations over which BESE exercises fiscal authority. In short, the entire case could be thrown out.

BESE has another issue in joining this suit: The DOA has already denied approval for one part of the state to sue another. Again, a judge might not be too keen on BESE’s decision to, in essence, attempt to sue a part of itself and could dismiss the lawsuit on such grounds.

The BESE majority and White are out on a limb and trying to rescue themselves with a saw.

If they insist….

Immediately following BESE’s vote to join the Choice Foundation et al. pro-CCSS lawsuit, the Jindal administration countersued BESE on the grounds that PARCC involvement entails forfeiting state sovereignty. As noted in the July 29, 2014, press release:

BATON ROUGE – Today, the Jindal Administration challenged the proponents of Common Core by filing a lawsuit to invalidate the Memorandum of Understanding (MOU) with Partnership for Assessment of Readiness for College and Careers (PARCC). The filing challenges the MOU on the basis that it offends state sovereignty by attempting to improperly delegate the constitutional authority of BESE and the Legislature to a “consortium” of other states. The non-delegation doctrine is recognized in both federal and state law and is based on the principle that certain powers authorized to the state cannot be delegated to other public or non-public entities.

I wonder if BESE and White anticipated this rapidly-filed countersuit. Whether or not they did is irrelevant. They are in a fix. The best that they can hope for is that a judge somehow sees past both the state suing itself without giving itself permission and the charter-BESE conflict of interest in that pro-CCSS lawsuit and grants an injunction regarding the sham of a “sole source” testing contract that is not sole source after all and forces the Jindal administration to hand over millions for PARCC assessments that White and Roemer say are Louisiana developed and for which Louisiana already has the federally-funded-consortium questions “for free”… until the case goes to court.

Or not.

Meanwhile, BESE and White still have to face being sued by 17 legislators over not following proper procedure in adopting CCSS in the first place and now the Jindal administration’s countersuit over handing state decision making authority over to an entity not influenced by Louisiana voters.